- Associated Press - Thursday, September 25, 2014

SANTA FE, N.M. (AP) - Secretary of State Dianna Duran declined Thursday to place nonbinding questions on the general election ballot to poll Chaves County voters about issues ranging from wolves to labor unions.

Duran made her decision not quite a week after New Mexico’s highest court ordered her to add advisory questions to the ballot in Santa Fe and Bernalillo counties that will ask voters about reducing marijuana penalties.

Chaves County Commissioner Greg Nibert, a Roswell lawyer, said it was unlikely the county would bring a lawsuit. “I think we agree with the secretary of state and her interpretation of the law,” Nibert said in a telephone interview.

The county commission had approved five nonbinding ballot questions. Those included measures to ask the county’s voters whether they would support local ordinances to require voter identification, ban the release of wolves in the county and repeal a prevailing wage that must be paid by contractors on certain taxpayer-financed construction projects.

Other questions would have polled voters about concealed handguns and whether the county should enact a right-to-work ordinance so workers aren’t required to join a union.



Nibert said the county had advanced the questions in hopes of demonstrating to the Supreme Court that advisory ballot questions are not a “one-way street” and could lead to conservative measures in some counties and liberal ones elsewhere.

Republicans have maintained that the marijuana questions in Bernalillo and Santa Fe counties are an attempt by Democrats to boost turnout among Democratic-leaning voters.

Duran, New Mexico’s top elections administrator, has contended that state law doesn’t permit nonbinding ballot questions that only survey voter opinions and lack the force of law.

A three-judge panel of the court ruled that Duran had a “non-discretionary, ministerial duty” to include the two counties’ questions on the ballot. The court announced its decision orally after hearing arguments from lawyers and issued a brief written order directing that the questions to be added to the ballot.

There’s no requirement for the court to later issue a formal, precedent-setting opinion with a detailed explanation of its legal reasoning.

Duran said Chaves County missed a Sept. 9 deadline for getting questions on the ballot.

The court, Duran said, wrongly determined that the ballot question deadline was 30 days before the general election - Oct. 4 this year. But Duran said federal and state law required absentee ballots to be sent to overseas and military voters by Sept. 20.

Pushing the deadline for ballot preparation to Oct. 4, she said, would make it impossible for her to comply with state law and have ballots ready for the start of absentee voting statewide on Oct. 7.

“In the absence of any clear and binding legal ruling to the contrary, I am advised by counsel that it remains my statutory duty and constitutional obligation, to determine that advisory ‘poll’ questions that do not conform to the types of questions authorized by the Legislature, are not to be included on a general election ballot,” Duran said in a letter to Chaves County officials.

“In this instance the proposed advisory questions meet neither the substantive criteria established by the Legislature nor the timeframe for submission established by both federal and state law,” she wrote.

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Follow Barry Massey on Twitter at https://twitter.com/bmasseyAP

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